| District Court Finds
Contributory and Vicarious Infringement by Madster |
9/4. The U.S.
District Court (NDIll) issued its Memorandum
Opinion and Order in the consolidated Aimster copyright
litigation, granting a motion for preliminary injunction filed
by various record companies and music publishers against the
Aimster file sharing service, which is now known as Madster.
The Court held that the "Plaintiffs have unequivocally
established that Aimster's users are engaged in direct
copyright infringement." It rejected Aimster's Audio Home
Recording Act (AHRA) defense.
The Court next held that the plaintiffs demonstrated a
likelihood of success on the merits that Aimster engaged in
both contributory and vicarious infringement.
The Court rejected Aimster's defense that its service is
capable of substantial non-infringing uses, under the Supreme
Court's decision in Sony
v. Universal City Studios, 464 U.S. 417 (1984). The Court
also found that Aimster is not eligible for any of the safe
harbor protections of the Digital Millennium Copyright Act,
because of its failure to comply with 17 U.S.C.
§ 512(i).
The Court has yet to issue the preliminary injunction order.
The Court's opinion orders the plaintiffs to submit proposed
language for the preliminary injunction within five business
days.
Madster has filed a bankruptcy petition. However, the
bankruptcy court lifted the bankruptcy stay for the purpose of
allowing this court to rule on this motion for preliminary
injunction. Madster was previously known as Aimster, but
ceased using the name, and associated domain names, when AOL
asserted trademark rights related to its AOL instant messaging
(AIM) service.
Hilary Rosen, Ch/CEO of the Recording
Industry Association of America (RIAA), which represents
record company plaintiffs, stated in a release
that "This unequivocal ruling today underscores that
companies and individuals will not be permitted to build a
business on music they do not own and will be held responsible
for their actions. Chief Judge Aspen considered every argument
presented by defendants and one by one rejected each argument.
He wrote that Aimster 'is a service whose very raison d'etre
appears to be the facilitation of and contribution to
copyright infringement on a massive scale.' " |
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| FCC Comments on
Electioneering Communications |
8/29. The Federal
Communications Commission (FCC) submitted a comment
[4 pages in PDF] to the Federal
Election Commission (FEC) in response to the FEC's Notice
of Proposed Rulemaking (NPRM) regarding electioneering
communications. The McCain Feingold bill requires the FCC to
carry in its web site data relevant to electioneering
communications.
§ 201(b) of the McCain Feingold campaign finance bill
(Bipartisan Campaign Reform Act of 2002, or BCRA), provides,
in part, that the FCC "shall compile and maintain any
information the Federal Election Commission may require to
carry out section 304(f) of the Federal Election Campaign Act
of 1971 ["FECA"] (as added by subsection (a)), and
shall make such information available to the public on the
Federal Communications Commission's website."
(Parentheses and brackets in original.)
§ 304(f) of the FECA, as amended by § 201(a) of the
BCRA, defines electioneering communications as "any
broadcast, cable or satellite communication which ... is
targeted to the relevant electorate." In addition, a
communication "targeted to the relevant electorate"
is defined as a communication that "can be received by
50,000 or more persons" in the district or state that a
candidate, who is referred to in the communication, seeks to
represent.
The FCC's comment notes that "this project will require
substantial resources in terms of time, money and personnel.
At minimum, it will involve the integration of population
information, congressional and state boundary geographic
information, and service area data for broadcast stations,
cable systems, and satellite systems. It could potentially
also involve more detailed information relating to the
specific programming services transmitted or carried by each
broadcast station, cable system, and satellite system in the
country."
The FCC also notes that while it possesses considerable data,
and can purchase data, it may be "required to collect
data from its regulatees", and "will likely have to
adopt new information collection forms".
The FCC also points out that whatever it does, its information
will not be accurate, because, for example, "some people
within a broadcast station's service contour cannot actually
receive its signal, and some outside it can".
The FCC also references a constitutional issue. It states that
"in order that the definition of electioneering
communication not be deemed unconstitutionally overbroad, the
rules should not result in overcounting the number of persons
reached."
The FEC has published in its website 35 comments which it has
received in response to this NPRM. See, list
of comments, with hyperlinks. See, especially, comment
[11 pages in PDF] submitted by the National Association of
Broadcasters (NAB), which is also challenging the
constitutionality of the BCRA in federal court. The NAB argues
that the definition of electioneering communications should be
limited to paid advertisements, and that broadcasters should
not be responsible for enforcing the mandates of the BCRA.
President Bush signed the BCRA on March 27; it takes effect on
November 6. The FEC held a public hearing on this NPRM on
August 27 and 28. This is FEC No. 2002-13. |
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| WTO DG Panitchpakdi
Addresses Trade and Doha |
9/3. World Trade Organization
(WTO) Director General Supachai Panitchpakdi gave a speech
in Johannesburg, South Africa, titled "Trade and
Sustainable Development: The Doha Development Agenda".
He spoke at the "World Summit on Sustainable
Development". He focused on how the Doha Development
Agenda, and free trade in general, will benefit poor nations.
"At Doha last November, in a climate of dangerous
international uncertainty, WTO members showed the
determination to make multilateralism work," said
Panitchpakdi. "The Doha Development Agenda is more than a
catchword or a vague expression of shared sentiment. It offers
the promise of real development gains. An open trading system
will help increase income levels and reduce poverty."
He also touched on intellectual property rights, but only in
the context of drug patents. He stated that "On drugs
patents and public health, issues which are vital for
sustainable development, a separate Ministerial Declaration
from Doha states that the WTO's TRIPS Agreement “does not
and should not prevent members from taking measures to protect
public health”. This declaration is a boost for global
efforts to address the public health problems afflicting many
developing and least developed countries, especially those
resulting from HIV/AIDS, tuberculosis, malaria and other
epidemics." |
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| Consumer Groups Petition
FTC to Promulgate Rule Banning Deceptive Spam |
9/4. The Telecommunications
Research and Action Center, the National Consumers
League, and Consumer
Action submitted a petition
[14 pages in PDF] to the Federal
Trade Commission (FTC) requesting that it initiate a rule
making proceeding to adopt a rule pertaining to deceptive
practices in the sending of unsolicited commercial e-mail.
The groups propose banning deceptive practices in sending spam,
such as misrepresenting the sender or content of the message.
They also propose mandating an effective opt out procedure.
Finally, they seek a private remedy.
The petition is titled "In the Matter of The Impact of
Deceptive and Fraudulent Unsolicited Commercial Email or Spam
on Consumers".
Congress has passed no legislation giving the FTC specific
authority to regulate spam practices. Many bills have been
introduced in recent Congresses. However, none has been
enacted into law.
The petitioners argue that the FTC has authority to promulgate
a rule under its general authority under Section 5 of the
Federal Trade Commission Act (FTCA), which is codified at 15 U.S.C.
§ 45. It provides, in part, that "Unfair methods of
competition in or affecting commerce, and unfair or deceptive
acts or practices in or affecting commerce, are hereby
declared unlawful".
The consumer groups argue in their brief that "While the
First Amendment protects the right of commercial free speech,
it does not protect fraudulent or misleading speech. UCE is
deceptive under the Federal Trade Commission Act when it is
harmful to consumers. Common and egregious deception occurs
when a sender intentionally misrepresents any portion of the
email (including the sender’s or recipient’s identity). It
is also deceptive to intentionally misrepresent the subject or
content of an unsolicited commercial email, fail to provide a
legitimate email or phone contact for the real party in
interest, fail to provide a reliable opt-out instruction or
fail to honor an opt-out request. The Commission has in its
power an effective tool for dealing with this problem. Issuing
a rule defining this type of email as a deceptive practice and
giving consumers the power to enforce this rule would
dramatically reduce the problem of deceptive UCE. It would
also serve to reduce the amount of UCE in total, possibly
restoring consumer confidence in e-commerce."
The petition also contains draft language for a proposed rule.
It is as follows:
"Unsolicited commercial email is deceptive and therefore
unlawful if it:
1. Misrepresents the sender (in source or routing
information); or
2. Misrepresents the subject or content of the email; or
3. Fails to provide reliable contact information for the real
party in interest; or
4. Fails to provide a reliable opt-out system; or
5. Is sent to an individual who has opted out or resigned from
sender’s list, or to whom sending unsolicited, commercial
email is otherwise prohibited by law."
Howard Beales, Director of the FTC's Bureau of Consumer
Protection, had this reaction. "The FTC is concerned
about the proliferation of spam affecting consumers and we
look forward to reviewing the petition. In every spam proposal
we have seen, vigorous law enforcement is key. We have brought
numerous cases against deceptive and misleading spam
practices, and that's exactly what we will continue to do.
Consumers can help our law enforcement efforts by sending spam
to our spam mailbox at uce@ftc.gov."
See, FTC
release. |
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| IIPI To Host Conference on
Specialized IP Courts |
9/5. The International
Intellectual Property Institute (IIPI) will host a two day
conference titled "Specialized Intellectual Property
Courts" on September 12 and 13 in Washington DC.
The first day of the conference will be held in the Moot Court
Room of the George
Washington University Law School. Highlights include the
following:
8:30 AM. Welcoming Comments: Bruce Lehman (IIPI) and others.
9:00 AM. Panel: Judicial Capacity Regarding the Enforcement of
Intellectual Property Disputes -- What we Know about
Specialized IP Courts in the World Today: Judge Randall
Rader (Federal Circuit), Prof. Michael Ryan (GWU), and
Christian Wichard (WIPO).
10:30 AM. Panel: Case Studies on Specialized IP Courts and
their Effect on the Improvement of IP Litigation:
International Developments in Developed Economies.
12:30 PM. Luncheon Keynote Address titled "Specialized IP
Courts and the Rule of Law" by Prof. Hugh Hansen (Fordham
Law).
2:00 PM. Panel: Case Studies on Specialized IP Courts and
their Effect on the Improvement of IP Litigation: American
Perspectives: Gerald
Mossinghoff (Oblon), Judge
Edward Damich (Court
of Federal Claims), Judge Pierre Leval (2nd Circuit), Judge
Ronald Whyte (U.S.
District Court, NDCal).
3:00 PM. Lecture: Evaluating Developing Country Judicial
System Performance.
4:00 PM. Panel: Case Studies on Specialized IP Courts and
their Effect on the Improvement of IP Litigation: IP Courts in
Developing, Transition and Small Economies.
The second day of the conference will be held at the Markey
National Courts Building at 717 Madison Place, NW. Highlights
include an opening speech by USPTO
Director James
Rogan, and panels titled "Training and Reforming the
IP Judicial Capacity", "The Role of Alternative
Dispute Resolution", "Handling Administrative
Determinations and Appeal Procedure", and
"Perspectives from Industry - Judicial Enforcement in
Developing Countries".
See also, IIPI
release and online
registration form. |
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| USPTO to Host Meeting on
Patent Examinations for Semiconductors and Electrical and
Optical Systems |
9/4. The U.S. Patent and
Trademark Office's (USPTO) Technology
Center 2800 announced that it will hold a half day event
on the morning of October 15 titled "Semiconductor
Customer Partnership Meeting".
The purpose of the meeting is to discuss the quality and
timeliness of the examination process for applications
pertaining to semiconductors, electrical and optical systems
and components.
Those planning to attend should contact Tom Thomas at tom.thomas @uspto.gov
or 703 308-2772. The meeting will be held at Crystal Park 1,
Suite 819, 2011 Crystal Drive, Arlington, Virginia. See also, USPTO
notice. |
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| More News |
9/4. The U.S.
Court of Appeals (FedCir) issued its opinion
[MS Word] in PIN/NIP
v. Platte Chemical Company, a patent
infringement case involving the growing of potatoes. The
District Court granted summary judgment to Platte that a claim
of its U.S.
Patent No. 5,622,912 is not invalid under 35 U.S.C.
§ 102. The jury returned a verdict that a claim of the
patent is not invalid under 35 U.S.C.
§ 103, that PIN/NIP infringed two claims of the 912
patent, and that one claim satisfied the written description
requirement of 35 U.S.C.
§ 112. The Appeals Court affirmed in part, reversed in
part and vacated in part.
9/4. The Federal Communications
Commission (FCC) announced that "an investigation by
the FCC's Enforcement Bureau has led to the conviction and
sentencing of William Flippo on eight counts, which include
unlicensed operation and causing intentional interference to
Amateur Radio Communications." Flippo violated 47 U.S.C.
§ 301 and § 333.
He was sentenced to 15 months imprisonment, and fined $25,000.
See, FCC
release. |
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| Thursday, September 5 |
The House will meet at 10:00 AM for legislative business. It
will consider several non tech related bills. See, Whip
Notice.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in CompTel
v. FCC, No. 00-1272. This is a petition for review of the FCC's June 2000 Supplemental
Order Clarification of the FCC's Local Competition Order. CompTel challenges the
FCC's authority to restrict access to unbundled network
elements (UNEs), and especially enhanced extended links (EELs).
See, brief
[PDF] of CompTel.Judges Edwards, Rogers and Williams will
preside. Location: Courtroom 20, 333 Constitution Ave., NW.
10:00 AM. The House
Judiciary Committee will hold a meeting to mark up several
bills. The last item on the agenda is HR 4561,
the Federal Agency Protection of Privacy Act, sponsored
by Rep. Bob Barr
(R-GA). The bill would require federal agencies to the agency
shall prepare and make available for public comment an initial
privacy impact analysis when it proposes new regulations.
Location: Room 2141, Rayburn Building.
10:00 AM. The House
Transportation Committee's Subcommittee on Highways and
Transit will hold a hearing titled "Driver's License
Security Issues." The scheduled witnesses include
Roger Cross (Wisconsin Division of Motor Vehicle), Rep. Mike
Weaver (Kentucky State House), Sen.
Betty Karnette (California State Senate), Katie Corrigan
(ACLU), Lori Waters (Eagle
Forum), and Ari Shwartz (CDT). See,
prepared statements of Waters
[PDF] and Schwartz.
See, notice.
Location: Room 2167, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee has scheduled an executive business
meeting. See, notice.
It has not released an agenda. However, the most pressing item
pending before the Committee is the nomination of Texas
Supreme Court Justice Priscilla Owen to be a Judge of
the U.S. Court of Appeals for the 5th Circuit. Location: Room
226, Dirksen Building.
12:00 NOON. William Lash (Assistant Secretary of Commerce for
Market Access and Compliance) will speak on "Trade
Compliance After TPA". Location: Heritage Foundation, 214
Massachusetts Ave NE.
2:00 - 4:00 PM. The FCC's Advisory
Committee for the 2003 World Radiocommunication Conference
(WRC-03 Advisory Committee) will hold a meeting. This meeting
was originally scheduled for August 22. See, original notice
in Federal Register, and rescheduling notice
in Federal Register. Location: Commission Meeting Room
(TW-C305), 445 12th Street, SW.
Day two of a three day meeting titled "U.S. Ireland
Business Summit". Secretary of Commerce Don
Evans is scheduled to speak at 9:30 AM. (See, DOC
release.) From 2:30 to 4:30 PM there will be a panel
discussion titled "Information and Communications
Technology". The scheduled panelists include FCC
Commissioner Kevin
Martin. See, conference
web site. Location: Ronald Reagan Building and
International Trade Center, 14th & Pennsylvania Avenue,
NW.
8:30 AM - 6:00 PM. Day one of a two day conference titled
"Symposium on the Role of Scientific and Technical
Data and Information in the Public Domain" hosted by
the National Academy of Sciences.
See, agenda.
Location: National Academy of Sciences Auditorium, 2100 C
Street NW.
Deadline to request to testify before the Trade Policy Staff
Committee (TPSC) hearing on China's compliance with the
commitments it made in connection with its accession to the World Trade Organization (WTO).
See, U.S. Trade Representative
(USTR) notice
in the Federal Register. |
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| Friday, September 6 |
The House and Senate will hold a joint meeting in New York
City.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Motion
Picture Association of America v. FCC, No. 01-1149. Judges
Edwards, Henderson and Rogers will preside. Location: 333
Constitution Ave., NW.
8:30 AM - 4:00 PM. Day two of a two day conference titled
"Symposium on the Role of Scientific and Technical
Data and Information in the Public Domain" hosted by
the National Academy of Sciences.
See, agenda.
Location: National Academy of Sciences Auditorium, 2100 C
Street NW.
Day three of a three day meeting titled "U.S. Ireland
Business Summit". See, conference web site.
Location: Ronald Reagan Building. |
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| Monday, September 9 |
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in WorldCom
v. FCC, No. 01-1198. Judges Tatel, Garland and Williams
will preside. Location: Courtroom 20, 333 Constitution Ave.,
NW.
Day one of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center. |
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| Tuesday, September 10 |
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in AT&T
v. FCC, No. 01-1188. Judges Ginsburg, Sentelle and
Silberman will preside. Location: 333 Constitution Ave., NW.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine the
implementation of the USA PATRIOT Act, focusing on the
expansion of the Foreign Intelligence Surveillance Act
(FISA). Location: Room 226, Dirksen Building.
12:00 NOON. The FCBA's
Engineering and Technical Practice Committee will host a brown
bag lunch titled "Spectrum Management Reform:
Preliminary Perspectives". The scheduled speakers are
Paul Kolodzy (FCC Senior Spectrum Policy Advisor) and Mike
Gallagher (NTIA).
RSVP to Lisa Gaisford.
Location: FCC, 445 12th St., SW, Courtyard Level, Conference
Rooms B418 & B511.
12:00 NOON. Deadline to submit written commits to the Office
of the USTR in response to its
notice
in the Federal Register requesting comments on China's
compliance with the commitments it made in connection with its
accession to the World Trade
Organization (WTO).
Day two of a two day conference on patent interference law,
hosted by the Intellectual
Property Owners Association (IPO). For more information,
call 202 466-2396. Location: Ronald Reagan International Trade
Center.
The Intellectual Property Owners
Association (IPO) Board of Directors will hold a meeting. |
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